Here’s a question I get all the time: “My trademark application is pending. Do I have to wait until it’s officially registered before I can start using my brand name?”
The short answer is no. You absolutely can use your trademark while your application is pending. In fact, many businesses do exactly that. But before you rush out to launch your rebrand, there’s one critical factor you need to consider: infringement.
The Real Question You Should Be Asking
The question isn’t whether you can use your trademark before registration; it’s whether you should. And that depends entirely on one thing: whether your use will infringe on someone else’s existing trademark rights.
Think about it this way. Just because you filed an application doesn’t mean you’re in the clear legally. If another business already has rights to a similar trademark in your industry, using your mark could land you in hot water, regardless of your pending application status.
Why a Trademark Search Is Your Best Friend
Before you decide on any brand name, the most important step is conducting a comprehensive trademark search. This isn’t just a quick Google search or a glance through the USPTO database (though those are good starting points). A proper search examines:
- Federal trademark registrations and pending applications
- State trademark registrations in your key markets
- Common law usage by businesses that might have rights even without registration
- Domain names and business registrations
The goal is to identify any potential conflicts before you invest time, money, and emotional energy into a brand that might cause legal problems down the road.
The Risks of Moving Forward Too Quickly
Let’s say you skip the search and start using your trademark immediately after filing. Here’s what could go wrong:
You might receive a cease and desist letter from another business claiming you’re infringing their rights. Suddenly, you’re facing the choice between an expensive legal battle or abandoning the brand you’ve started building.
Even worse, if a court finds that you’re infringing, you could be liable for damages and forced to stop using your trademark entirely and potential liable for daamages. All that marketing, branding, and customer recognition you’ve built? Gone.
When It Makes Sense to Start Using Your Mark
If your trademark search comes back clean (meaning no conflicts with existing trademarks), you can generally feel confident moving forward with your brand while your application is pending.
In fact, there are good business reasons to start using your trademark right away:
- Build brand recognition early in your business journey
- Establish common law rights through actual use in commerce
- Get customer feedback on your branding before it’s set in stone
- Start generating revenue under your chosen brand name
- Ability to file a trademark application based on use in US commerce
The Smart Approach
Here’s what I recommend to my clients:
- Conduct a thorough trademark search before filing your application.
- File your trademark application based on either current use or intent to use.
- Start using your trademark if the search showed no major red flags.
- Monitor for potential conflicts as your business grows.
Remember, trademark rights in the US are based primarily on use, not registration. While registration provides significant benefits, actual use in commerce is what creates your fundamental rights.
Don’t Go It Alone
The decision of when and how to start using your trademark involves weighing legal risks against business opportunities. It’s not just about what’s legally permissible; it’s about what makes strategic sense for your specific situation.
A qualified trademark attorney can help you navigate this decision by conducting proper searches, assessing potential risks, and developing a strategy that protects your interests while allowing your business to move forward.
Ready to protect your brand the right way? We’re here to help you make informed decisions about your trademark strategy. Call us today at (888) 666-0062 or click here to schedule your initial Discovery and Strategy Session online. Let’s ensure your trademark journey starts on solid legal ground.
DISCLAIMER: The information contained in this article is for informational purposes only and is not legal advice or a substitute for obtaining legal advice from an attorney.
